Taylor v. Kaufhold
| Decision Date | 15 November 1951 |
| Citation | 84 A.2d 347,368 Pa. 538 |
| Parties | TAYLOR v. KAUFHOLD et al. |
| Court | Pennsylvania Supreme Court |
Forest R. Taylor brought an action in assumpsit against Henry Kaufhold, individually, for damages resulting when such defendant, as assignee of lease, wrongfully remained in possession after expiration of lease term, and when plaintiff as lessee under another lease was entitled to possession of the premises, and against Henry Kaufhold and the Peerless Casualty Company, on a supersedeas bond. The Court of Common Pleas of Erie County at 455 May Term, 1948, Elmer L. Evans President Judge, rendered a judgment adverse to the defendants and the defendants appealed. The Supreme Court Bell, J., Nos. 139, 154 March Term, 1951, held, inter alia that plaintiff was entitled to recover from the individual defendant the estimated loss of profits plaintiff would have received but for the wrongful holding over by the individual defendant, and was not limited to rental value of premises during time of such holdover.
Judgment affirmed in part and reversed in part.
J. V. Agresti, Agresti & Agresti and T. P. Dunn, Erie, for Henry kaufhold.
Gifford, Graham, MacDonald & Illig, O. J. Graham and John E. Britton, Erie, for Peerless Cas. Co.
Frank B. Quinn, Howard N. Plate, Quinn, Leemhuis, Plate & Dwyer and Paul A. Stephany, Erie, for appellee.
Before DREW, C. J., and STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Suits arising out of the transactions here involved have twice before been before the appellate courts and were offered in evidence in this case; hence the facts covered a wide range and were voluminous. We shall discuss, however, only those facts which we think are pertinent and important.
Taylor, as lessee, on April 1, 1944, entered into a two year written lease with Craig who owned the demised premises but not the restaurant business which was conducted thereon. In the latter part of 1945, Taylor was in ill health and wished to go West for a rest cure and to have his close friend, Kaufhold, operate the restaurant and liquor business which Taylor had been conducting on the demised premises. On November 12, 1945, Taylor and Kaufhold had a meeting with Craig and desired Craig to consent to an assignment of the lease by Taylor to Kaufhold, explaining that the arrangement was merely temporary until Taylor regained his health. Taylor at that time also requested Craig, in the presence of Kaufhold, to make a new lease to him, Taylor, for three years commencing April 1, 1946; and to these requests Craig agreed. That same day, viz: November 12, 1945, Taylor sold the restaurant business to Kaufhold and assigned to him his (two year) lease, which had 4 1/2 months to run, and shortly thereafter Craig approved in writing this assignment.
On November 15, 1945, Craig, in fulfillment of his oral agreement, entered into a new written lease with Taylor for the same premises, the lease to commence April 1, 1946.
Kaufhold held over after the expiration of the original lease of April 1, 1944 . On April 3, 1946, Craig, the owner and landlord, entered an amicable judgment of ejectment against Taylor (his lessee), and issued a writ of habere facias naming Kaufhold, the present defendant, as tire tenant. Kaufhold then filed a motion to open the judgment; upon the dismissal of his motion, he appealed to the Superior Court of Pennsylvania. In order to perfect that appeal and to have it act as a supersedeas, Kaufhold, as principal, and Peerless Casualty Company, as surety, entered into a bond in the face amount of $5,000. The Superior Court quashed Kaufhold's appeal, Craig v. Taylor, 160 Pa.Super. 101, 50 A.2d 118; but in the meantime Kaufhold remained in possession of the premises until after the decision of the Superior Court on January 24, 1947. All costs arising out of Craig's ejectment proceedings against Taylor, and the appeal therein by Kaufhold, for which the above mentioned surety bond had been given, were paid in full and no money judgment remains unpaid.
Taylor thereupon brought an action in assumpsit against Kaufhold, individually, and against Kaufhold and the Peerless Casualty Company on their aforesaid supersedeas bond. Taylor's complaint averred that the value of the leasehold premises from April 1, 1946 to January 24, 1947, was $18,722.40 ‘ and the plaintiff has been damaged by being deprived of said leasehold [1] by the defendant, Henry Kaufhold, during said period in that amount’ . The Jury found a verdict for plaintiff in the amount of $14,254.90 . The verdict was then moulded by the court with the approval of all parties concerned into a verdict of $5,000 against Kaufhold and the Peerless Casualty Company (based on their supersedeas bond), and $9,254.90 against defendant, Kaufhold. This verdict was predicated not on the rental value of the leasehold, but on the profits which plaintiff would have made if Kaufhold had not illegally retained possession of the premises. Both defendants contend (1) that plaintiff has joined an action in tort with claims in assumpsit for breach of contract, and (2) that the reasonable rental value of the premises is the correct measure of damages, and not the estimated loss of profits, and (3) that with respect to the surety, there could be no recovery by this plaintiff on a surety bond which was not given for his benefit, and the obligations of which have been fully performed.
Plaintiff's claims against these defendants were tried together in one action and were argued before us as one case and we shall accordingly so treat them.
We shall first dispose of plaintiff's claim based upon the surety bond. The surety bond upon which plaintiff is suing both defendants was made by Kaufhold, principal, and Peerless Casualty Company, as surety, to the Commonwealth of Pennsylvania for ‘ the use of all proper parties in interest ’, as required by § 5 of the Act of May 19, 1897, P.L. 67, 12 P.S. § 1137. The bond further provided: ‘ Now the condition of this obligation is such that if the above appeal shall be prosecuted with effect and appellant will not commit or suffer to be committed, any waste on the property in dispute, that he will pay whatever mesne profits accruing after the judgment shall be thereafter recovered against him, and all costs and damages awarded by the appellate court or legally chargeable against him, then this bond shall be void and of no effect; otherwise to remain in full force and virtue.'[2]
It will be recalled that this supersedeas bond was given in a suit in which Craig brought an action of ejectment and secured judgment against his lessee, Taylor. Taylor, who was defendant in the ejectment proceedings, not only lost that case, but took no part in Kaufhold's appeal. While the supersedeas bond was given for the use of all proper parties in interest, the proper party in interest and the only proper party in interest in that appeal was Craig, who was plaintiff and landlord and owner of the judgment which was being appealed from and temporarily superseded. Moreover Craig is not a party to this suit, having been paid his rent and costs in full, and is not asking any relief in this case. Under all these facts we are unable to see how Taylor, the unsuccessful defendant in the ejectment proceedings, can successfully contend that the supersedeas bond was given for his benefit or that he was a proper party in interest within the meaning of the bond.
With respect to Kaufhold's appeal, it will be necessary to emphasize certain facts. Prior to the assignment of the existing lease by Taylor to Kaufhold and prior to the new lease by Craig to Taylor, Kaufhold knew that Taylor, if he recovered his health, intended on April 1, 1946 to conduct or to continue a restaurant and liquor business on the demised premises . Taylor's covenant in the lease of April 1, 1944, to deliver up the premises to Craig in good order and repair at the end of the term was equally binding upon Taylor's assignee, Kaufhold, since a covenant to deliver up possession of the premises runs with the land and binds the assignee. Pollard v. Shaffer, 1 Dall. 210, 1 L.Ed. 104; Normile v. Martell 95 Pa.Super. 139. It is obvious, therefore, that Kaufhold's retention of possession of the demised premises, after the expiration of the lease, was morally, equitably and legally unjustifiable.
Plaintiff did not sue Kaufhold in trespass on the case, nor did he bring an action of ejectment and claim damages therein, perhaps because the law is not clear as to whether ejectment would lie by a tenant who had never been in possession.[3] Could he, a tenant, bring an action of assumpsit or of trespass against Kaufhold, a hold over assignee, and if so, what was the measure of damages?
It has been expressly decided that a landlord can sue a tenant who illegally holds over in assumpsit for use and occupation during the hold over period if he elects to treat the holding over as one of tenancy, but if he elects to regard the hold over tenant as a trespasser he cannot recover in assumpsit on the ground of an implied contract, but can recover in trespass on the case...
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